Dale v. Prentice, 2015 ONSC 1611
COURT FILE NO.: 5748/14ES
DATE: 20150317
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JUDY DALE
Moving Party
– and –
MONA PRENTICE
Estate Trustee
Peter J. Doucet, for the Moving Party.
Robert A. Dinnen, for the Estate Trustee.
HEARD: February 26, 2015
R. D. GORDON, R. S. J.
Overview
[1] Judy Dale has brought a motion seeking the removal of Robert Dinnen as counsel to Mona Prentice, Estate Trustee of the Estate of Lucy Dale.
Background Facts
[2] The deceased, Lucy Dale, died on April 13, 2014 at the age of 95. She had three natural daughters: Mona Prentice, Carol Scott and Lillian Dale. In addition, she had an adopted daughter, Judy Dale.
[3] On January 10, 2010, Lucy Dale signed a Last Will and Testament prepared by the law office of Raymond Warman. By the terms of that Will, Judy Dale was to receive her home and contents, and the residue of the estate was to be divided among her children in four equal shares.
[4] On November 15, 2013, Lucy Dale signed a new Last Will and Testament. This Will contained no special gift of the home and instead divided the entire residue of the estate among her children in four equal shares.
[5] Judy Dale is contesting the validity of the Will of November 15, 2013, alleging that Lucy Dale lacked testamentary capacity when she signed it.
[6] The Will of November 15, 2013 was prepared by the law office of Robert Dinnen. From the evidence before me it appears that Brenda McKinnon, a law clerk employed by Mr. Dinnen’s office, spoke to Lucy Dale by telephone on September 18, 2013 and arranged to meet with her at the hospital where Ms. Dale was then staying. They met on September 20 and Ms. Dale provided instructions for the preparation of a new Will. Ms. McKinnon saw Ms. Dale next on November 15, 2013 at the Extendicare Nursing Home in Kirkland Lake. Ms. McKinnon had with her Ms. Pietrasik, another law clerk from Mr. Dinnen’s office, and together they witnessed Ms. Dale sign her new Will. Both Ms. McKinnon and Ms. Pietrasik have sworn affidavits that Ms. Dale was competent to sign her Will that day.
[7] In the months surrounding these events, there is evidence that Ms. Dale was, at times, suffering from confusion and cognitive impairment. Examples are as follows:
- Upon her admission to hospital on August 8, 2013, cognitive testing revealed moderate cognitive impairment, with areas of concern noted as orientation, attention and recall.
- On August 10, 2013, hospital records indicate that she was very confused and emotionally labile and weepy; not orientated to place or time.
- On August 13, 2013, hospital records indicate that she thinks it is summer 2023.
- On August 15, 2013, hospital records indicate that she thinks it is fall and year 2023, and Dr. Tang signed an opinion of capacity in which he stated his professional opinion that Ms. Dale lacked capacity on that date.
- On August 27, 2013, hospital records indicate completion of a Montreal Cognitive Assessment resulting in a score of 14/30 with specific areas of concern identified as, inter alia, attention, delayed recall and orientation.
- On September 12, 2013, Mr. Warman sent a letter to Judy Dale and Carole Scott in which he stated: “With reassessing your mother’s capacity on the 10th of September, 2013, she does not recall me being her lawyer. I can only conclude that the two previous assessments indicating a lack of capacity are still valid”.
- On September 19, 2013, Mr. Warman sent a letter to Mr. Doucet indicating the following: “In relation to Lucy Dale please note that a doctor has declared her unfit at a certain time. I have interviewed her twice since then and she has no memory as to who I am and the contents of her estate and knowledge and understanding of the conditions within her powers of attorney and her will. In interviewing her the last time there are witness to her lack of memory. Lucy Dale has no capacity to manage her own property and her health.”
[8] In those same months, there is evidence that her mind was functioning reasonably well:
- In the 3 weeks leading up to her first meeting with Ms. McKinnon, hospital records indicate that her orientation as to person, place and time was regularly assessed and found to be appropriate.
- On September 12, 2013, Dr. Jefremova signed what appears to be a prescription slip that says: “As of this day Ms. Dale, Lucy is competent to make any decisions.”
- Ms. Monika Schallenberger and Ms. Susan Rankin witnessed Ms. Dale sign powers of attorney papers on September 16, 2013 and have signed a letter indicating that to the best of their knowledge she was competent when she did so.
- On December 4, 2013, Ms. Dale signed a listing agreement for her home and the real estate agent has signed a letter saying that she appeared to be competent at that time.
- On February 3, 2014 Dr. Richard Denton signed a letter stating: “I have spent time this morning from 9:20 to 9:40 a.m….She is mentally capable of making a will, and deciding on who her power of attorney for financial and medical affairs are at this time…”.
[9] In the end, it will be necessary to determine her testamentary capacity on the day the Will was signed, namely November 15, 2013. Crucial witnesses in that determination will be Ms. McKinnon and Ms. Pietrasik, both of whom are employed by Mr. Dinnen.
Applicable Law
[10] In the case of Essa Township v. Guergis (1993), 1993 8756 (ON SCDC), 15 O.R. (3d) 573 the Divisional Court found that courts should carefully consider the right of a client to be represented by counsel of choice and said that counsel should only be removed in the clearest of cases. It then set out several factors which a court should consider in an application to remove a lawyer as counsel of record for a party in a civil proceeding, including:
- The stage of the proceedings.
- The likelihood that the witness will be called.
- The good faith (or otherwise) of the party making the application.
- The significance of the evidence to be led.
- The impact of removing counsel on the party’s right to be represented by counsel of choice.
- Whether trial is by judge or jury.
- The likelihood of a real conflict arising or that the evidence will be tainted.
- Who will call the witness.
- The connection or relationship between counsel, the prospective witness and the parties involved in the litigation.
[11] Counsel for the estate also urged me to find that Rule 75.06 (1) requires a person who moves for directions to establish a prima facie case before the court will allow the motion to proceed. I am unable to so find. Rule 75.06 requires only that the moving party appear to have a financial interest in an estate in order to apply for directions.
Analysis
[12] In considering the various factors identified in Essa Township v. Guergis, supra, I find the following.
[13] This proceeding is in its very early stages. The Moving Party’s motion for directions has not yet been heard. However, it would appear that most documentary evidence has now been exchanged.
[14] The witnesses who give rise to the potential conflict are Ms. McKinnon and Ms. Pietrasik. Clearly, in the weeks and months leading up to the execution of the Will in question Lucy Dale had several days when her competence, and her testamentary capacity were questionable at best. On the day she signed her Will, the only direct evidence on point is to be offered by Ms. McKinnon and Ms. Pietrasik. There is every likelihood that both will be called as witnesses at trial.
[15] There is nothing to suggest that the moving party is acting anything but good faith in bringing this motion.
[16] The evidence of Ms. McKinnon and Ms. Pietrasik will be a very important consideration by the judge hearing the trial of this matter.
[17] No evidence was filed by the estate on the issue of the impact of removing counsel on its right to be represented by counsel of choice. I was asked to take judicial notice of the limited number of counsel that might be available given the relatively small population of Kirkland Lake and the apparent conflict of many of the town’s lawyers. Although this may be so, there was no evidence led on the issue of the unavailability or unwillingness of other lawyers in the District of Temiskaming to take the matter on.
[18] The trial of this matter is likely to be by way of judge alone.
[19] There is a significant likelihood of a real conflict arising. Counsel for the estate is propounding a Will prepared by his office. The preparation and execution of Wills are legal services, reserved to those who are properly licensed to practise law. Counsel’s ability to objectively and independently assess the evidence will necessarily be affected by his interest in having his firm’s legal services found to have been properly provided.
[20] Although counsel for the estate did not undertake to call Ms. McKinnon and Ms. Pietrasik as witnesses, it seems most likely that he will do so. If he does not, counsel for the moving party has indicated that he will call them, and perhaps even Mr. Dinnen as well.
[21] The proposed witnesses are long term and presumably trusted employees of counsel. They work together every day. Although it may not be the type of relationship that would exclude counsel from acting in every case in which they might be involved, when the subject matter of their testimony is the very service provided by the law firm, the nature of the relationship is of added significance.
[22] When I consider all of these factors, it is clear to me that Mr. Dinnen is in a position of conflict and that it is inappropriate that he continue to act for the estate. Accordingly, it is ordered that he be removed as solicitor of record for Mona Prentice, Estate Trustee.
[23] If the parties are unable to agree on the issues of costs they may make written submissions to me, not to exceed three pages each, plus attachments, within 45 days.
R. D. GORDON, R.S.J.
Released: March 17 , 2015
CITATION: Dale v. Prentice, 2015 ONSC 1611
COURT FILE NO.: 5748/14ES
DATE: 20150317
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
JUDY DALE
Moving Party
– and –
MONA PRENTICE
Estate Trustee
Ruling on motion
R. D. GORDON, R. S. J.
Released: March 17, 2015